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tion to any copy would be insuperable. Now the rule that a
copy of a copy is not evidence, properly applies to cases
where tlic original is still in existence and capable of being
compared with it ; or where it is the copy of a copy of a
record, the record being still in existence, and being by law
as high evidence as the original. The reason of the rule is
the same in both cases, the copy offered is two removes from
the original. But it is quite a different question whei-e the
original is lost, and the record is not deemed in law as high
as the original. Winn v. Patterson^ 9 Pet. Rep., 677, per
Story, J. In Robertson v. Lynch^ 18 Johns. Rep., 450, after
notice to the defendant to produce an original letter, the
court admitted in evidence to prove its contents a copy made
from the letter book of the plaintiffs*, on the testimony of a
clerk who testified that he copied the original into the letter
book, and that the copy offered in evidence was a true copy
of the copy in the letter book. On a motion to set aside the
verdict and grant a new trial, the case went off on another



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FEBRUARY TERM, 1371. 659



Freeman 0. Benedict.



point, but the court say — " We are inclined to think that
none of the other objections, (this was one,) are well founded."

The witness in this case testified that he knew the paper
oflFered to be an exact copy of the original letter. That, we
think, made it admissible ; the proper foundation for the ad-
mission of secondary evidence having been previously laid.
The facts elicited on the cross-examination, at the most, go
no farther than to show that this was a second copy, verified
as a true copy of the original. It was properly admitted.

There should be no new trial.

In this opinion the other judges concurred.



1 77



George Freeman vs. Wh-bur F. Benedict.

The defendant purchased a yoke of oxen of the plaintiff, and soon after delivered \ ^
to him a negotiable note of a third party, payable at bank to the order of the
defendant, not then due. The defendant testified that the plaintiff took it in
payment ; the plaintiff testified that he took it only to present at the bank and
get payment ; and there was no other evidence. Both parties were ignorant
of tiie nature of such a note, and it was not endoreed by the defendant and
nothing was said about an endorsement In an action of assumpsit for the
price of tlie oxen, to which the defendant pleaded the general issue with notice
of the delivery of the note in payment, the court held that, as matter of law,
the burden of proof with regard to the note was on the defendant, and, regard-
ing the evidence as equally balanced, decided that the plaintiff was entitled to
recover. Held to be correct

The mere fact that the plaintiff had received the note from the defendant did not
make a primdfade case of payment, that fact being consistent with either pur-
pose claimed by the parties.

And the non-indorsement of the note by the defendant was not to be regarded
as showing that he did not intend to be holdcn for its goodness. This, with
all the other circumstances attending the transaction, was proper to be consid-
ered, but the law would attach no special significance to it.

It appeared that when the note became due the maker had property and the
note-was collectible, but that the plaintiff took a new note from the maker
without the defendant's knowledge, and that the maker became insolvent be-
fore the new note became due. Held that this conduct on the part of the
plaintiff was sufficient to discharge the defendant from further liability, even
if the first note was not received as payment.



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560 FAIRFIELD COUNTY.

Freeman o. Benedict.

Bat it appeared that the defendant in the conrt helow tet np in his notice onlj
that the note was delivered in payment, and did not claim that this conduct
of the plain tiflf was in itself a defense, but that it changed the burden of
proof in respect to the purpose for which the note was received. Held that,
while this evidence had some bearing on this question and as such had been
considered hj the court below, yet that the law gave no special force to it.
#

Assumpsit, for. the price of a yoke of oxen sold by the
plaintifif to the defendant ; brought to the Court of Common
Pleas for the county of Fairfield, and tried, on the general
issue, closed to the court, before Brewster^ J.

The notice attached to the plea was as follows :

" The plaintiflF will take notice that the defendant wUl
claim, and oflFer evidence to prove, that after the cause of ac-
tion in the declaration mentioned originated, the defendant
heretofore, to wit, on the 26th day of September, 1868, deliv-
ered to the plaintiff a certain promissory note, made by one
Daniel M. Hall, of $170, and thereafter, to wit, on or about
the 10th day of October, 1868, the defendant delivered to the
plaintiff $20 in money, and that said note and money were
paid to and accepted by the plaintiff in full payment, satisfac-
tion and discharge of said cause of action, and that the
plaintiff took said note in accordance with his promise and
agreement, before that time made to and with the defendant,
as part of the consideration for said oxen, without the in-
dorsement of the defendant on said note, and without recourse
to him ; and this the defendant is ready to verify."

The court rendered judgment for the plaintiff for the sum
of 1192.95 and his costs, and the defendant moved for a new
trial. The points made in the motion are sufficiently stated
in the opinion.

Sturges and ThompsoUj in support of the motion.

Woo%terj contra.

Seymour, J. The plaintiff declares on the common counts
in assumpsit for the price of a yoke of oxen sold by him to
the defendant. The Court of Conmion Pleas having rendered
judgment for the plaintiff, the defendant moves for a new



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FEBRUARY TERM, 1871. 661

Freemak v. Benedict.

trial. The motion at great length sets out the claims of the
parties and the evidence whereby these claims were supported.
The question however resolves itself into one of law, arising
upon fitcts found by the court below to be substantially as
follows : —

The plaintiff sold to the defendant a yoke of oxen. About
ten days after the sale he called on the defendant for payment.
The defendant had no money, but had a note against one
Hall, payable at bank to the order of the defendant. The
plaintiff took this note, and, as defendant claimed and testi-
fied, received it towards payment, as far as it went, for the
oxen. Tlie plaintiff on the other hand claimed and testified
that he took the note as a mere means of payment, being
told by the defendant that the note upon presentment at the
bank would bring the money. Both parties seem to have
been ignorant of the nature of such a note, for the defendant
did not indorse it, although payable to his order, and nothing
appears to have been said by either party about an indorse-
ment.

The court, regarding the testimony of the parties as of
equal credit and equally balanced, and there being no other
testimony to turn the scale, decided that as matter of law
the burden of proof was on the defendant, and that the de-
fendant not having established his defence the plaintiff was
entitled to judgment. The defendant now insists before us
that the court erred in holding that under the circumstances
the burden of proof rested upon him.

We think the decision of the Court of Common Pleas is
correct. That court found, as matter of fact, that the defend-
ant became debtor for the oxen. The defence was that this
debt had beeu satisfied. The burden of proving satisfaction
was of course on the defendant.

The mere'factthathe had delivered to the plaintiff, and that
the plaintiff had received from him, Hall's note, did not
make a primd facie case of payment. Th^ purpose of the
delivery might be as collateral security, and as mere means
of satisfaction, or it might be as payment' and satisfaction.
The fact of delivery is equally consistent with either purpose.

You xxxvn. — 71



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662 FAIRFIELD COUNTY.

Freeman v. Benedict.

The defendant contended that the non -indorsement of the
note is significant in his favor, as showing that he did not
intend to be holden for its goodness. The plaintiff contended
tliat if the note had been received in satisfaction the legal
title would naturally have been transferred to him by endorse-
ment, which endorsement might have been without recourse
if the note was really to be taken at the plaintiff's risk.
Whatever weight these suggestions of counsel may be enti-
tled to on the question of fact, we think there is nothing in
the fact of non-endorsement which changes tlie burden of
proof. Tlie defendant must prove his defense. He must
satisfy the triers that the note was taken in satisfaction. All
the circumstances attending the transaction, including this
of non-endorsement, are proper to be taken into considemtion,
but the law attaches no special significance to the absence
of the defendant's name on the note as changing the burden
of proof.

Besides the question thus far discussed, the defendant says
that it appears from the finding that when Hall's note became
due he had property and the note was collectible, and that
the plaintiff, instead of enforcing collection, took a new note
from Hall without the defendant's knowledge or consent, and
that by thus doing the defendant is discharged, Hall having
become insolvent before the new note became due. If these
are precisely the facts, and all the facts, the defendant would
seem to have a good defence, for if the first note of Hall was
received as mere security, yet if the plaintiff without the de-
fendant's consent gives time to Hall or discharges him from
the old debt, the law is plain that the defendant may by these
acts be discharged from further liability.

But in answer to this claim of the defendant it appears,
1st, that the defendant pleaded the general issue and gave no
notice of any such dcCence as that now made ; 2d, it does
not appear that any such defence as that now under consider-
ation was presented to the attention of the Court of Commoii
Pleas ; 3d, the finding iiidicates that the matter now relied
on as a defence was connected with other facts which might
essentially qualify the main fact relied on.



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FEBRUARY TERM, 1871. 663

Parsons v. Piatt.

It does however appear in the record that the defendant
claimed before the court below that, the plaintiff having de-
livered up the first note to Hall and accepted the second
without the knowledge of the defendant, the law will presume
that the plaintiff received the first note in payment and gave
credit to Hall, and that the burden of proof was on the
plaintiff to show that it was not so received. It will be no-
ticed that the defendant does not here rely upon the subse-
quent conduct of the plaintiff as being in itself a defence,
but he relies upon it as changing the burden of proof in re-
spect to the purpose for which Hall's note was originally
received. The record does not show except by inference
what disposition of this claim was made by the Court of Com-
mon Pleas ; but the result shows that the court did not place
on this evidence the artificial value claimed for it of changing
the burden of proof. This evidence of the plaintiff's subse-
quent conduct is admissible against him, and has some bear-
ing on the main issue between the parties whether the first
note of Hall was taken and received at the time it was taken
in satisfaction and payment, but the law gives no artificial
force to evidence of this kind, but properly leaves it, with all
its attendant circumstances, to whatever force it naturally
has in carrying conviction to the mind of the trier.

We do not advise a new trial.

In this opinion the other judges concurred.



37 563
58 M
'37"58S]
68 Sd |

9r 563

76 579

[37 563

Frederick Parsons vs. William Platt. *•" ^^

A petition for a new trial mnst aver, and it'mnst be made to appear, Ist, that
the additional evidence is new! j-discoyered ; 2d, that it is material ; 3d, that
the witnesses will testify to it ; 4th, that it could not have been obtained and
produced at the trial by the use of due diligence.

It must also appear that the new evidence is not offered to prove a new defence,



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664 FAIRFIELD COUNTY.

Paraons v. Piatt.

or let the party into one of which he had knowledge at the trial, — that it is
not offered to impeach a witness, — that it b not cumulative, — that it makes it
apparent that injustice has been done, — and is sufficient to make the case a
primd/acie one for the petitioner on a new trial.
Such a petition is addressed to the discretion of the conrt, and a refhsal to grant
it is not the subject of error.

Petition for a new trial, brought to the Court of Common
Pleas in Fairfield county, and heard before Brewster j J. Pe-
tition dismissed and motion in error by the petitioner. The
principles of law decided by the court will be sufficiently un-
derstood without a stateijient of the facts of the case, which
would occupy much space.

G> H. Holluter and D. F. HollUter^ for the petitioner.

Treat and Btdlochy for the respondent.

Butler, C. J. This is a petition for a new trial on the
ground of newly-discovered evidence, addressed to the Court
of Common Pleas, which tried the case. The petition is suf-
ficiently formal, and is to be governed by the rules of law
applicable to the determination of petitions of that character.
Tlie court found the facts alleged to be true, but held them
insufficient in the law. In order to decide whether the judge
erred in so holding, we must look at the legal requisites of
such a petition and see if the facts found brought the case
within them.

First, it must be averred in the petition, and made to ap-
pear, that the additional evidence is newly-discovered.

Second, that it is material.

Third, that the witnesses will testify to it.

Fourth, that it could not have been obtained and produced
at the trial by the use of due diligence.

These requisites are averred, and sufficiently covered by
the finding of the court.

But it must further appear : —

Fifth, that the evidence is not offered to prove a new de-
fence, or let the party into a defence of which he had knowl-
edge at the trial. Lester v. The State^ 11 Conn., 415.



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FEBRUARY TERM, 1871'. 565

Parsons v. Piatt.

Sixth, that it is not offered to impeach a witness. 1 Swift
Dig., 787.

Seventh) that the evidence is not cumulative. 1 Swift Dig.,
787.

Eighth, that it makes it clearly apparent that injustice has
been done, Nbrmch ^ Worcester Jt. R. Co. v. Cahill^ 18
Conn., 484.

Ninth, that the new evidence is " sufficient to turn the
cause in favor of the applicant ; " 1 Swift Dig., 787 ; and show
that " if a new trial were granted a different result would be
produced." 18 Conn., 484.

Such are the legal rules by which a court must be governed
in disposing of such an application for a new trial, and a
petition which does not show such a case is insufficient in
the law and demurrable as such.

We are satisfied that the newly-discovered evidence was
not offered to prove a strictly new defence, nor claimed in
order to impeach a vidtness ; and that it was not cumulative
within the rule adopted in Waller v. Graves, 20 Conn., 210.
But we are not satisfied that it is cleai'ly apparent upon the
face of the petition that injustice has been done, or that the
newly-discovered evidence was sufficient to turn the cause in
favor of the applicant or to produce a different result. And
this, for two reasons. 1st. The warranty found by the
court below, was found upon what was said between the par-
ties in the market, at the time when the money was paid.
The declarations there made, from which the warranty was
implied, were sworn to by the plaintiff and another witness.
The defendant did not directly deny the making of those
declarations, nor offer any other witness to prove that they
were not made. Tlie fact that they were made was therefore
proved by a clear and sufficient preponderance of evidence.
The newly-discovered evidence does not impair that prepon-
derance. It does not relate to what took place in the market
and was not admissible to contradict the Platts. It was only
admissible and could only be operative to show that Parsons
said, outside cf the market, that he would not warrant. But
that does not prove the fact found that he did warrant in the



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666 FAIRFIELD COUNTY.



Parsons v. Piatt.



market afterwards, and before the money was paid him. Such
evidence obviously could not be considered suflScient to " turn
the cause in favor of the applicant" or '* produce a diflFerent
result." The petition, in my judgment, was clearly demurra-
ble. 2d. The evidence is, under tlie circumstances, entitled
to no weight. The applicant was a witness on the trial. He
testified after tlie Platts had testified, in relation to tlie entire
transaction and presumptively to everything which occurred
that could aid his defence. If he made the declaration to
which the new witness will swear, he must have known it
and could not have forgotten it, and assuming it to be as im-
portant as ho claims it to be, presumptively he would have
sworn to it if true. He did not swear that he said so, nor
claim that ho did. Nor does he claim in his petition that
such a declaration was ever made, or assign any reason why
he did not testify to it. It is scarcely ci*edible that he made
it. The charitable inference imder such circumstances is,
that the witness was mistaken. Besides, if such a declare
tion was made, Pai^sons must be presumed to have known it
at the time of the trial, and in the absence of any claim that
he had forgotten it, or any excuse for not introducing the
fact in any of his testimony, must be holden guilty of fatal
neglect. For these reasons also the petition must have been
held insufficient on demurrer.

But this case is not properly before us, and although heard
upon its merits without objection, it is our duty to dismiss it.
It has been settled by a long course of decisions in this state,
that a petition for a new trial being an application to the
discretion of the court, a refusal to grant it is not the subject
of error. Tlie question was unanimously decided by this
court in 1823, in White v. Trinitt/ Churchy 6 Conn., 187,
being the only question in the case. Tliere had been a series
of decisions to the same effect prior to that, commencing
with Kimball v. Cadij^ Kirby, 41, and there have been at
least three since that time, namely, Magill v. Lyman^ 6 Conn.,
59, Lester v. The' State, 11 Conn., 415, and Norwich ^ Wor-
cester R. B. Co. V. Cahilly 18 Conn., 484.

But it is said, and seems to have been conceded, that the



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FEBRUARY TERM, 1871. 667



Parsons v, Plstt.



. court found the facts alleged true, and decided " as matter
of law" that the petition was insufficient in the law. And it
is claimed that a writ of error will therefore lie from his de-
cision. But counsel are mistaken. In the early case of
Granger v. Bisaelly 2 Day, 364, there was a demurrer to the
j)etition, which of coui-se admitted tlie allegations of fact and
took issue as matter of law on the sufficiency of the petition in
the law. The court adjudged it insufficient and the petitioner
brought error. But the Supreme Court held that error would
not lie from the judgment. Again, in the next case, Lewis
V. Rawley^ 1 Conn., 49, there was a demurrer to tlie petition
and a judgment that the petition was insufficient, and the Su-
preme Court again held that error would not lie. So in
White V. Trinity Churchy 5 Conn., 187, there was a demurrer
to the petition and "judgment was rendered tliereon for the
respondent," but the court held that error would not lie. In
Lester y. The State j 11 Conn., 415, there was a demurrer to
the petition and the questions were reserved. This court, in
deciding them, after a full examination of tlie facts, said,
" let the Superior Court be advised that the petition is insuffi-
dent.^^ Now, such being the usual form of decision by this
court in cases where the facts in the petition were admitted
or deemed insufficient, we cannot say that a different construe*
tion is to be given to the record of Judge Brewster, where
he finds the facts proved, and thereupon holds as miatter of
law that the petition is insufficient in the law. Surely it can
make no difference that the facts were found to be true instead
of being admitted by a demurrer to be true, or that the record
says he found the petition insufficient as matter of lawj for
such is the finding and judgment in all cases on a demurrer.
So the court in all the cases cited, and all courts in all cases
of judgment on demurrer, upon a bill or petition in equity,
decide as matter of law that the bill or petition is insufficient
in the law. In my judgment the distinction taken is unsup-
ported by authority, contrary to general practice, and ground*
less. Where the facts alleged in a petition are admitted by
demurrer or default, or found true on a hearing, the suffi-



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668 FAIRFIELD COUNTY.

bnpples i;. Lewis.

ciencj or insufficiency of it is matter of law, and a judgment
of sufficiency or insufficiency must rest on legal rules appli-
cable to the subject-matter and facts, and tliis case cannot
be legitimately treated as an exception.
There is no error in the record.

In this opinion the other judges concurred.



Henry Supples vs. George W. Lewis.

i9 held a judgment against C on which an execution was issued and retoraed
unsatisfied. A second execution was afterwards issued, and while it was in
the hands of the officer C paid the amount to the officer without a lerj. While
the money was in the hands of the officer L got possession of it, and refused
to deliver it to ^ upon his demand. In an action for monej had and received
brought by S against L, it was held— 1. That parol evidence that a second
execution had been issued did not contradict the record evidence laid in bj the
plaintiff, which showed merely the judgment and the first execution. 2. That
the fact that the second execution had been issued could be proved by pared
evidence, the olyect being not to prove the contents of the execution, Imt stm
ply to show that it had been issued and was in the hands of the officer at the
time, thus showing that the officer was the agent of the plaintiff in collecting^
the money and that he held it for him. S. That it was not necessary that
the officer should sue for the money, but that the plaintiff could maintain as-
sumpsit for it.

The testimony of an impeached witness is not necessarily to be wholly rejected,
but where there are circumstances tending to corroborate it, it may be suffi-
cient to prove a fact

Assumpsit for money had and received, brought to the
Court of Common Pleas of the county of Fairfield, and tried
on the general issue, closed to the cdurt, before Brewster^ J.
Judgment for the plaintiff, and motion for a new trial by the
defendant. The case is sufficiently stated in tiie opinion.

Taylor J in support of the motion.

Todd^ contra.



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FEBRUARY TERM, 1871. 669

Supples V. Lewis.

Park, J. It appears by the motion in this case that one
Sturges recovered judgment for costs against one Cannon, and
afterwards assigned the judgment for a valuable consideration
to the plaintiff. Execution wbb duly issued on the judgment,
and placed in the hands of a deputy sheriff of Fairfield
County to ^rve, who collected the amount of the judgment
without a levy of the same. While the officer was holding
the money for the plaintiff, the defendant unlawfully took it
from his possession, and has ever since retained it. The de-
fendant offered no evidence on the trial.

Fix)m these facts it would seem that no defence could be
made to the claim of the plaintiff But it appears that the
execution put into the hands of the officer was a second exe-
cution issued upon the judgment, the first execution having
been returned wholly unsatisfied. The second execution
was never returned because it was never served, and the facts
in relation to it were proved by parol. Tlie defendant objects
to the evidence 01^ the ground, first, that it contradicted the
record of the judgment and first execution, which had been
laid in by the plaintiff to prove title in himself, inasmuch as
the record did not state that a second execution had been



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